SUBEDI v Minister for Immigration
[2014] FCCA 2830
•5 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUBEDI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2830 |
| Catchwords: MIGRATION – Business visa – review of Migration Review Tribunal decision. |
| Legislation: Migration Act 1958, ss.359A, 360, 474 Evidence Act 1995, s.161 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | GYANENDRA SUBEDI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1515 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 17 November 2014 |
| Date of Last Submission: | 24 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Newman of Newman & Associates |
| Counsel for the First Respondent: | Ms R. Francois |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1515 of 2014
| GYANENDRA SUBEDI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Nepal, applied for a Temporary Business Entry (Class UC) subclass 457 visa on 6 July 2012. On 13 November 2012 the applicant’s application was refused by a delegate of the Minister on the basis that he did not satisfy cl.457.223 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the Tribunal for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Legislation
The criteria for the grant of a subclass 457 are set out in pt.457 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.457.223 of sch.2 to the Regulations. At the time the Tribunal made its decision cl.457.223 relevantly provided:
(1)The applicant meets the requirements of subclause (2) or (4).
…
Standard business sponsorship
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
…
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea) if:
(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea)(i) and (ii) does not apply;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
…
(6) This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
…
(11) In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
That version of the clause was substantially different from the version which applied at the time the applicant lodged his application and when the delegate made her decision. Relevantly, the clause was amended on 23 March 2013 by cls.94 to 98 of sch.6 to the Migration Amendment Regulation 2013 (No.1) in respect of visa applications made after 23 March 2013: cl.1201 of sch.13 to the Regulations, on 1 July 2013 by cls.14 to 20 of sch.3 to the Migration Legislation Amendment Regulation 2013 (No.3) in respect of applications made, but not finally determined, before 1 July 2013: cl.1903(7) of sch.13 to the Regulations and on 22 March 2014 by cls.5 and 6 of sch.5 to the Migration Amendment (2014 Measures No. 1) Regulation 2014 relevantly in respect of applications made, but not finally determined, before 22 March 2014: cl.2703 of sch.13 to the Regulations.
The relevant instrument for the purposes of cl.457.223(11) was IMMI 14/009, legislative instrument F2014L00327. Item 7 of that instrument provides:
SPECIFY for the purposes of the meaning of “exempt applicant” under subclause 457.223(11) of Schedule 2 to the Regulations, the following classes of applicants to be an exempt applicant:
(a)applicants who are a citizen of, and who hold a valid passport issued by, the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland;
(b) applicants who:
(i)are nominated in an occupation that does not require a level of English language competency for grant (however described) of registration, licence or membership; and
(ii)have completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English;
…
(d)applicants who lodged the visa application that this Instrument applies to before 1 July 2013 and are:
(i)the subject of an approved nomination and the application for approval of the nomination was made on or after 1 July 2010 in an occupation that does not require a level of English language competency for grant (however described) of registration, license or membership; and
(ii)nominated in the application for approval of nomination in an occupation for an approved position in an occupation that is in ANZSCO Major Groups 1, 2, 4, 5, 6, Sub-Major Group 31 or Unit Group 3993;
…
Background facts
Primary application
In his application form the applicant indicated that he had studied continuously for at least five years in a secondary and/or higher institution where the language of instruction was English. On 19 July 2012 the delegate asked the applicant to provide evidence of his English language proficiency, being a specified International English Language Testing System (“IELTS”) test score. In response, on 12 November 2012 the applicant provided a copy of a letter dated 13 August 2012 from the Shree Narayani Public High School in Nepal which certified that the applicant had studied at that “English Medium School Since 1984 to 1990 (Class four to class ten)”.
As already noted, on 13 November 2012 the delegate refused the applicant’s application on the basis that he did not satisfy cl.457.223 of sch.2 to the Regulations.
Tribunal proceedings
On 26 March 2014 the Tribunal wrote to the applicant inviting him to attend a hearing on 24 April 2014. In a response to that invitation the applicant indicated to the Tribunal that he would attend the hearing. However, on the day of the hearing the applicant’s representative telephoned the Tribunal and advised that the applicant would not be attending the hearing. Later that day the applicant’s representative sent a submission which relevantly advised that the applicant sought an exemption from proof of his English language proficiency. In support of that submission the applicant’s representative provided a copy of the 13 August 2012 letter from the Shree Narayani Public High School in Nepal which had previously been provided to the delegate. The applicant’s representative also provided some information on the school system in Nepal and indicated that the applicant would provide a letter from the school where he had completed years eleven and twelve of his schooling.
On 28 April 2014 the Tribunal wrote to the applicant advising him that it had examined the letter he had provided and was not satisfied that its contents were genuine or truthful, that is, it was not satisfied that it was a genuine letter from the school or, alternatively, that it might have been issued by the school but contained untruthful information, having been obtained by corrupt means. The Tribunal noted that it would be difficult to verify the letter in Nepal. It advised the applicant that it required him to demonstrate his English language proficiency by undertaking an IELTS test and gave him until 1 May 2014 to provide documentary evidence that he had made a booking to sit the next available IELTS test. It further advised that if he provided such evidence, it would grant him a further extension of time to await the test result, otherwise it would proceed to make a decision on the evidence before it. No response was received from the applicant or his representative.
The Tribunal’s decisions and reasons
On 7 May 2014 the Tribunal affirmed the delegate’s decision to not grant the applicant a visa. It noted the applicant’s claim that he was exempt from the English language proficiency requirement on the basis that his schooling had been conducted in English but found that he was not an exempt applicant for the purposes of cl.457.223(11). In that regard the Tribunal:
a)noted that the applicant had not claimed to be exempt on the basis of his salary and therefore that he did not meet cl.457.223(6);
b)considered the exemption criteria found in item 7 of IMMI 14/009 and found that the applicant satisfied item 7(b)(i) of that instrument because he had not nominated an occupation which required a level of English language competency for grant of registration, licence or membership. However, on the evidence before it, the Tribunal was not satisfied that the applicant had completed at least five consecutive years of full-time study in a secondary or higher education institution where the instruction was delivered in English as required by item 7(b)(ii) of IMMI 14/009. In that connection, the Tribunal found that the letter provided by the applicant which he claimed was from his secondary school in Nepal was a photocopy which led it to have serious concerns about its genuineness and the truthfulness of its contents. It noted that it had intended to raise the issue with the applicant at its hearing but he had failed to attend and had failed to respond to its letter of 28 April 2014; and
c)went on to find that none of the other exemptions listed in item 7 of IMMI 14/009 applied to the applicant and therefore that he was not an exempt applicant for the purposes if cl.457.223(11).
The Tribunal found that there was no evidence that cl.457.223(4)(ea) applied to the applicant and so found that it did not. Having found that the applicant did not satisfy sub-cls.457.223(4)(eb)(i), (ii) and (iii), the Tribunal went on to find that he also he did not meet sub-cls.457.223(4)(eb)(iv) and (v) because there was no evidence before it that he had undertaken a language test and achieved the specified score, even though he had been given further time to produce evidence that he was endeavouring to do so. The Tribunal concluded that the applicant had not demonstrated his English language proficiency in the manner specified by the Minister and that he therefore also did not meet cl.457.223(4)(ec).
Proceedings in this Court
In his application commencing these proceedings the applicant alleged:
1.The tribunal made an error by not considering my claims, specifically in terms English Exemption and alleged that my information were not genuine without possessing any adverse information “imagined” that it may fraudgelent [sic] just because the person who drafted was not competent person to draft such letters.
2.The tribunal made a decision suiting itself as it had no intention to consider my application fairly and reasonably from the point that they issued me a letter under section 359a with the allegation.
Evidence
The evidence at the hearing of this application principally concerned whether the Tribunal had received a fax from Nepal on or about 1 May 2014 which was said to be a transmission of a letter.
In an affidavit sworn on 30 July 2014 the applicant’s solicitor, Mr Newman, deposed:
The applicant’s case is that, inter alia, the second respondent failed to consider confirmative evidence of his English education in Nepal in the form of a letter dated 1.5.2014 that was transmitted by fax directly to the second respondent by the Shree Narayani Public High School, a copy of which is annexed hereto and marked ‘A’. Annexed hereto is, I am instructed, the fax transmission report records the transmission to the tribunal at 8.12am.
The said letter does not appear in the Court Book.
…
At p 159 of the CB the Tribunal said that it was not satisfied that an earlier letter from the applicant’s school was genuine or that its contents were untrue and at para 19 on CB 160 the Tribunal set out its reasons for rejecting it, viz, it was ‘only a photocopy’. Thereafter the applicant in Australia had the school in Nepal directly communicate with the tribunal which it did.
For these reasons the applicants [sic] says that there was sufficient direct evidence from the school to satisfy a tribunal and had the tribunal had concerns as to its authenticity then those enquiries could and should have been directed at the school itself.
The “transmission report” to which Mr Newman referred was not annexed to his affidavit but was tendered at the hearing. It was a copy printout or statement from Nepal Telecom in respect of a telephone number in Nepal. The document relevantly indicated that on 1 May 2014 an international call of 28 seconds’ duration was made from that number to an Australian telephone number which was identified as the fax number of the Tribunal’s Sydney registry. Although it was described in Mr Newman’s affidavit as a “transmission report” it contained few of the details which are normally associated with such documents, such as whether the transmission was successful or not.
The letter referred to in Mr Newman’s affidavit and allegedly sent in that fax transmission was objected to and not admitted into evidence. However, in order that its potential significance can be understood it can be recorded that the document was dated 1 May 2014, addressed to the Tribunal and purportedly signed by the principal of the Shree Narayani Public High School in Nepal. It ostensibly confirmed that the applicant had studied at the school from year four to year ten and that English was the school’s only medium of instruction.
The Minister relied on the affidavit of the Tribunal’s Director of Technology Services, Bernadette Mary Ruddy, affirmed 15 October 2014. Ms Ruddy deposed that the Tribunal had not received a fax from the Shree Narayani Public High School on or about 1 May 2014. Ms Ruddy deposed to the electronic process by which faxes are received by the Tribunal which is, in short, as follows: faxes are received by a private automatic branch exchange (“PABX”) maintained by the Tribunal; once received they are forwarded to the Tribunal’s “fax server” where they are converted into PDF documents and then sent to a Tribunal email mailbox from which they are then distributed to the intended recipients. Ms Ruddy deposed to the automation of the system, up to but excluding the final step of distribution, and to how logs of incoming faxes were retained. Ms Ruddy’s evidence was, in substance, that that the Tribunal’s records for the relevant period were comprehensive and complete. She deposed, having reviewed those records, that a call of 28 seconds’ duration was received from an anonymous number on 1 May 2014 and that another was received on 2 May 2014 but that both were recorded as “Receive failure (Phase B)”.
Ms Ruddy explained that the “Receive failure (Phase B)” note described the situation where a remote fax machine and the Tribunal’s system could not communicate with each other with the result that an intended fax was not received by the Tribunal.
Matters in issue
The principal issue addressed at the hearing of this application was whether, as suggested by the tendered Nepal Telecom document, the Tribunal received a fax transmission of 28 seconds’ duration on or about 1 May 2014. The question whether any such transmission contained the letter purportedly from the principal of the Shree Narayani Public High School was stood over for later consideration were it to be determined that the alleged fax transmission had, in fact, been received by the Tribunal.
Arguments were also addressed to the other matter raised by the application. This concerned the letter from Nepal whose genuineness the Tribunal rejected. The applicant submitted that the Tribunal’s finding as to the genuineness of that letter amounted to a finding of untruthfulness and fraud on his part and that that was an issue which should have been put to him as an allegation before the finding in question was made.
The applicant also argued in his written submissions, as an allegation, that “the Tribunal unwittingly cut off a line of enquiry when it said that verification [of the letter from Nepal whose genuineness it rejected] would not be possible in Nepal”. In addresses, the applicant submitted that the Tribunal “was imposing a bar” by this statement and saying that it did not want to hear from anyone in Nepal, thereby disclosing a closed mind on evidence he relied upon.
Consideration
Receipt of fax
Despite the best efforts of the applicant’s solicitor to convince me otherwise, I am satisfied that Ms Ruddy had the expertise and experience to give evidence of the operation of the system used by the Tribunal to receive and record faxes which it receives. I accept Ms Ruddy’s evidence and find that the Tribunal did not receive a fax from Nepal on or about 1 May 2014 which involved a transmission time of 28 seconds. I note in that connection that it was not suggested that s.161 of the Evidence Act 1995 was engaged by the circumstances of this case.
As the Tribunal did not receive the fax in question, it committed no error by not considering whatever it might have contained.
In light of those findings, no purpose would be served by the adduction of further evidence concerning whether the alleged fax transmission contained the letter purportedly from the principal of the Shree Narayani Public High School.
Denials of procedural fairness
The Tribunal’s procedural fairness requirements are, in large part, codified in div.5 of pt.5 of the Migration Act. The applicant did not identify which of the sections in that division he relied on although ss.359A and 360 appear to be the ones most relevant to his allegation that he was denied procedural fairness.
In relation to s.360 of the Act, contrary to the applicant’s submission, the Tribunal did not find that he was untruthful. Consequently, such an issue did not need to be put to him pursuant to s.360. Rather, the Tribunal rejected the document on which the applicant relied in making his claim to have been educated in English in Nepal and this led to it not being persuaded of that claim. To find that a person has not made out an allegation is not a finding that he or she has lied.
In relation to s.359A of the Act, the Tribunal’s conclusion in relation to the letter from Nepal which it did receive was not based on information which the section required be put to the applicant. In particular, its assessment of the document itself, which was only a photocopy, was not information which engaged the section.
To the extent the applicant suggested that the Tribunal’s statement that the contents of the letter would be difficult to verify indicated error, that passage needs to be seen in context. In para.20 of its reasons the Tribunal said:
Hence, the Tribunal in its letter to the applicant after the hearing stated it was not satisfied on the face of it that the letter’s contents were genuine or truthful. The Tribunal went on to say that it was either not satisfied that it is a genuine letter from the school, or alternatively, that it may have been genuinely issued by the school but its contents untruthful, being obtained by corrupt means. The Tribunal also noted that it considered that the contents of the letter would be difficult to verify in Nepal. There was no response to this letter.
It can be seen that the Tribunal put its concerns regarding the genuineness of the letter to the applicant for his comment before it reached its decision. Far from cutting off a line of enquiry or closing its mind to evidence from Nepal, the Tribunal implicitly invited the applicant to put its concerns regarding the document to rest. However, he did not reply.
The allegation that the applicant was denied procedural fairness is therefore not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 5 December 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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